Category Archives: Probate Law Basics

A question that often arises is “what is probate?”, and then frequently, before receiving an answer, the next question is “how do I avoid probate?” It’s kind of interesting when a person feels that they want to avoid something without even having a grasp on what that thing actually is.

When an individual has died and owns property, if there are survivors they will have to submit to a legal process that determines how the decedent’s assets will be distributed. These people who receive the assets are called beneficiaries.

The legal process which appoints the person who will distribute the assets, notifies the next of kin, and files the required tax documents, along with some other required tasks, is commonly referred to as probate.

Now as to our original question – is probate something you want to avoid? Well as with many issues, whether legal or not, the answer is ‘it depends’.

There are various factors that might enter into the decision as to whether or not probate is something that you want to avoid. Typically it can be tied to what assets the deceased owned at the time of death, the actual laws in effect in that particular location since laws do vary around the country, and whether or not maintaining privacy is a major consideration of the person handling the probate process.

Since probate is a public process, all details will be available on the public record, and some individuals might have issues with that.

The type of assets matter because different assets are treated differently, and the treatment of assets does vary from state to state. Some states have very strict requirements for certain types of property such as real estate. If these types of assets are present, it might be desirable to avoid probate and all the associated complicated requirements, or at least simplify the process.

There are ways to avoid probate. It might involve the nature of your assets, it might be how you categorize your assets, or it might involve setting up a trust.

Probate law is a section of the law that deals with the legal processes of handling the debts and assets of a person after they die. This process includes the administration of an estate. A person does not necessarily have to be rich to be considered as having an estate. Many people have estates that include property that they own such as a home without a mortgage as well as stocks and other bank accounts.

Probate law varies from state to state, so it’s a good idea to know what the laws are for your own state.

The process of probate can be a long and drawn out one which is why many people will do what they can when planning an estate to avoid this process. People may instead decide to create a trust versus deal with probate.

It includes proving that a will is valid. It also includes having the distribution of assets handled with the oversight of the executor or administrator of the will. Taxes have to be paid out of the process and so do any debts that the decedent died with so this can take a large sum of money away from the heirs of the will.

The legal process starts when a person dies and the family files a probate petition with the court. A family law attorney can help with this step. The death certificate must be obtained and submitted with the probate petition before the case can begin. The process can be held up if any family member or anyone contests the validity of the will.

This is why the process may also be started about 90 days after the person dies. Attorneys are paid out of the proceeds or assets of the case. Probate is sometimes required and is not an option so always consult with your family attorney to find out what the laws are regarding probate law in your area.…

Do you have assets that you would like to pass on to specific heirs? Consider setting up an estate plan to protect your assets and avoid probate.

When someone passes away it is necessary for the remaining estate to enter into probate court. Probate law is somewhat different from any other type of law in that it is overseen directly by the court to ensure that all debts and assets are appropriately managed. Depending on the size of the estate left behind, this can be a rather complicated matter that can take many months or even longer to resolve.

This is done to ensure that all of those that may be entitled to funds from the estate receive them. Those that have money owed to them are first paid before any assets can be distributed to those that have been named in the will. In an ideal situation, the will would clearly name all those that are owed so that the process can run smoothly once it reaches court. In some cases, however, a probate lawyer may need to spend a great deal of time sifting through the records of the deceased in order to determine the steps that need to be taken.

Once all debts have been accounted for and paid, the remaining assets can be distributed as stated in the will. If there was not a will left, then the court will work to find the natural heirs of the deceased. If the individual was married, then that individual is typically deemed the heir, unless there was a prenuptial agreement that stated otherwise. If there was not a spouse, but there are surviving children, then they would be given the assets, divided equally among them.

While it is not often the case, at times there may be disputes among those that claim to be entitled to the assets. This can lead to the process taking a great deal more time as the court will have to mediate such situations in accordance with the state’s probate law.…

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